Terms of Service

1. Definitions

2. PAVE SaaS Services

3. Ownership; Reservation of Rights

4. Privacy

5. Permitted Users

6. Support

7. Service Incident Response Times

8. Service Levels

9. Fees and Payment

10. Confidential Information

11. Warranty; Disclaimer; Indemnity

12. Limitation of Liabilities

13. Term and Termination

14. General Provisions

These PAVE Terms of Service (the “Terms of Service”) forms an agreement between Discovery Loft Inc. (“Discovery Loft”), with its principal place of business located at 145 Front St E Suite 102, Toronto, ON M5A 1E3, and the customer entering into an Order Form (as defined below) with Discovery Loft (the “Customer”). Each of Discovery Loft and Customer will individually be referred to as a “Party” and jointly as the “Parties”.

In addition to the terms and conditions set out in an Order Form, these Terms of Service sets forth the terms and conditions that govern the provision and use of: (i) the PAVE SaaS Services for the capture and inspection of vehicles; and (ii) consulting, training and other professional services made available by Discovery Loft in respect of the PAVE SaaS Services.

BY ENTERING INTO AN ORDER FORM, CUSTOMER AGREES TO BE BOUND BY AND COMPLY WITH THESE TERMS OF SERVICE AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(k).

1. Definitions

(a) "Agreement“ means these Terms of Service together with the applicable Order Form that incorporates these Terms of Service by reference.

(b) “Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads, transmits to, or enters into the PAVE SaaS Services, including Personal Information.

(c) “Customer System” means any software, solution, platform, system, or interface of Customer set out in an Order Form that Customer makes available to its Permitted Users in order to enable such Permitted Users to submit Customer Data relating to the inspections of vehicles to the PAVE SaaS Services.

(d) “Discovery Loft Services” means the PAVE SaaS Services and the Professional Services, collectively.

(e) “Effective Date” means the date upon which Customer first enters into the Order Form.

(f) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.

(g) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

(h) “Order Form” means any order form that incorporates these Terms of Service by reference and is executed by both Parties.

(i) “PAVE SaaS Services” means services through which Discovery Loft hosts and makes available the PAVE solution for the automated capture and inspection of vehicles that are described in an Order Form and any component thereof, including the provision of the Condition Reports. For clarity, the term “PAVE SaaS Services” does not include Professional Services.

(j) “Permitted Uses” means the permitted uses set out in an Order Form.

(k) “Personal Information” means information about an identifiable individual.

(l) “Professional Services” means the consulting, training and other professional services set out in an Order Form. The term “Professional Services” does not include PAVE SaaS Services.

(m) “Website” means any website used by Discovery Loft to provide the PAVE SaaS Services, including the websites located at https://paveapi.com and https://capdoc.paveapi.com.

2. PAVE SaaS Services

(a) Provisioning of the PAVE SaaS Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Discovery Loft will make the PAVE SaaS Services available to Customer solely for the Permitted Uses and on the terms and conditions set out in this Agreement during the Term. Customer is responsible for: (i) identifying and authenticating all Permitted Users; (ii) ensuring only Permitted Users access and use the PAVE SaaS Service; (iii) Permitted Users’ compliance with this Agreement; and (iv) Permitted Users’ access and use of the Customer System in connection with the PAVE SaaS Services, including any integration required between the Customer System and the PAVE SaaS Services (except to the extent such integration has been performed by Discovery Loft pursuant to an Order Form).

(b) Restrictions on Use. Except as expressly permitted by this Agreement or as otherwise agreed to by Discovery Loft in writing, Customer will not itself, and will not permit others to:

(i) sub-license, sell, rent, lend, lease or distribute the PAVE SaaS Services or any intellectual property rights therein, or otherwise make the PAVE SaaS Services available to others;

(ii) use the PAVE SaaS Services to permit service bureau use or commercially exploit the PAVE SaaS Services;

(iii) use or access the PAVE SaaS Services: (A) in violation of any applicable law or intellectual property right; (B) in a manner that threatens the security or functionality of the PAVE SaaS Services; or (C) for any purpose or in any manner not expressly permitted in this Agreement;

(iv) use the PAVE SaaS Services to create, collect, transmit, store, use or process any Customer Data:

(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;

(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or

(C) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);

(v) Modify the PAVE SaaS Services;

(vi) reverse engineer, de-compile or disassemble the PAVE SaaS Services;

(vii) remove or obscure any copyright, trade-mark, trade name, or other proprietary notices or labels on the PAVE SaaS Services, including Discovery Loft Marks and other brand, copyright, trademark and patent or patent pending notices, but excluding Customer Marks used in connection with the White-Labelling Functionality;

(viii) access or use the PAVE SaaS Services for the purpose of building a similar or competitive product or service; or

(ix) perform any vulnerability, penetration or similar testing of the PAVE SaaS Services.

(c) Suspension of Access; Scheduled Downtime; Modifications. Discovery Loft may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:

(i) suspend Customer’s access to or use of the PAVE SaaS Services in whole or in part:

(A) for scheduled maintenance for which Discovery Loft has provided reasonable advance notice to Customer;

(B) due to a Force Majeure;

(D) to address any emergency security concerns; or

(E) if required to do so by a regulatory body or as a result of a change in applicable law; and

(ii) make any Modifications to the PAVE SaaS Services, provided that no such Modification will materially degrade the functionality or performance of the PAVE SaaS Service.

(d) Subcontracting. Discovery Loft may engage third parties to provide the PAVE SaaS Services.

(e) Condition Reports. As part of the PAVE SaaS Services, Discovery Loft will provide Customer with a report that sets out the results of the applicable vehicle inspection performed using the PAVE SaaS Services (each, a “Condition Report”). Each Condition Report will be comprised of: (i) Customer Data, which will be subject to Section 3(a) below; and (ii) data generated or derived from Customer Data in connection with the use of the PAVE SaaS Services (“Condition Report Data”). Discovery Loft hereby grants to Customer a royalty-free, world-wide, non-exclusive license to use each Condition Report (excluding Discovery Loft Marks included therein) solely for the purposes of the applicable instance of the vehicle inspection to which the Condition Report relates and on the terms and conditions set out in this Agreement. In addition to the foregoing, Discovery Loft also grants to Customer a revocable, royalty-free, world-wide, non-exclusive, non-sublicensable, and non-transferable license to use and display Discovery Loft’s trade-mark, trade name, or other proprietary notices or labels included in each Condition Report (the “Discovery Loft Marks”) solely as part of the Condition Report and Customer’s use of the PAVE SaaS Services. Except as expressly permitted by this Agreement or as otherwise agreed to by Discovery Loft in writing, Customer will not itself, and will not permit others to:

(i) sub-license, sell, rent, lend, lease or distribute the Condition Reports or any intellectual property rights therein, or otherwise make the Condition Reports available to others; or

(ii) Modify the Condition Reports.

Customer acknowledges and agrees that Discovery Loft is not responsible or liable for any use of the Condition Report or any Condition Report Data provided by Discovery Loft, whether such use is by Customer or any Permitted User, that is not for the purpose of the applicable instance of the vehicle inspection to which the Condition Report relates.

(f) White-Labelling Functionality. As part of the PAVE SaaS Services, Customer will have the option to apply its trade-mark or trade name marks (the “Customer Marks”) to the Condition Reports and a certain Permitted User interface provided as part of the PAVE SaaS Services (the application of such marks the “White-Labelling Functionality”). Customer grants to Discovery Loft a nonexclusive, worldwide, royalty-free, sublicensable, and fully paid-up right during the Term to access and use any Customer Marks provided by Customer in connection with the White-Labelling Functionality.

3. Ownership; Reservation of Rights

(a) Customer retains all ownership and intellectual property rights in and to Customer Data and the Customer System. Customer grants to Discovery Loft a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to:

(i) access and use the Customer System to provide the Discovery Loft Services; and

(ii) access, collect, use, process, store, disclose and transmit Customer Data to: (i) provide the Discovery Loft Services; (ii) improve and enhance the Discovery Loft Services and its other offerings; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Discovery Loft may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer (including any Permitted User) of any kind.

(b) Discovery Loft or its licensors retain all ownership and intellectual property rights in and to: (i) the Discovery Loft Services; (ii) anything developed or delivered by or on behalf of Discovery Loft under this Agreement, including the Condition Report Data but excluding any Customer Data; and (iii) any Modifications to the foregoing (i) and (ii).

(c) All rights not expressly granted by Discovery Loft to Customer under this Agreement are reserved, including rights in and to Discovery Loft Marks.

4. Privacy

Each Party will comply with all applicable laws, when using, handling, disclosing, transferring, sharing, or processing, in any way and for any purpose, any Personal Information, including each Party’s employee and customer Personal Information. The Parties will provide reasonable assistance to each other in order to allow the Parties to comply with their respective obligations under privacy laws. Discovery Loft’s use, storage, processing, disclosure, and deletion of Personal Information provided to Discovery Loft by Customer under this Agreement is governed by the privacy policy located at https://pave.ai/privacy-policy (the “Privacy Policy”), which may be updated by Discovery Loft from time to time.

5. Permitted Users

(a) Customer will ensure that all of Customer’s customers (each, an “End Customer”) to whom Customer provides services using the Discovery Loft Services (the “Customer Services”), as well as Customers’ employees, independent contractors, or other internal users (each, an “End User”, and together with End Customers, “Permitted Users”), are bound by enforceable agreements containing terms that are no less restrictive or protective of Discovery Loft’s and its licensors’ rights than those set forth in this Agreement. Customer will use all efforts to enforce such agreements similar to those efforts Customer uses to enforce its own terms and agreements for the protection of its own proprietary interests, but in no event less than reasonable efforts. Customer will promptly notify Discovery Loft of any actual or suspected unauthorized use of the PAVE SaaS Services.

(b) Upon Customer’s request, Discovery Loft will issue one or more accounts (each, a “Customer User Account”) to Customer for use by Permitted Users. Customer will ensure that Permitted Users only use the PAVE SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Discovery Loft reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.

6. Support

Customer will generally have access to Discovery Loft’s tier 2 technical support services (“Support Services”): (a) via email at support@pveapi.com from 9:00 am EST each Monday to Sunday to 9:00 pm EST each Monday to Sunday, (excluding statutory and civic holidays observed in Toronto, Ontario); (b) via Discovery Loft’s Slack channel; and (c) via Discovery Loft’s knowledge base and documentation available online at https://capdoc.paveapi.com. In the event that Customer requires additional support services from Discovery Loft, such services will be specified and ordered separately in an Order Form. Notwithstanding anything to the contrary in this Agreement, Customer will provide all support to Permitted Users, and if any Permitted User contacts Discovery Loft for support, Discovery Loft will direct such Permitted User to Customer for support.

7. Service Incident Response Times

Following written notification by Customer of any inability to access the PAVE SaaS Services (during the Inspection Hours), Discovery Loft will properly classify such Service Incident into one of the severity levels described below, and based on such severity level classification, will use commercially reasonable efforts to respond to Customer in accordance with the time frames set forth below.

The following terms will have the meanings set forth below:

“Critical” means any complete inability to access the PAVE SaaS Services by Customer, unless such inability to access PAVE SaaS Services is the result of any Excluded Outage.

“Medium” means any partial degradation in the functionality or performance of the PAVE SaaS Services, unless such degradation is the result of any Excluded Outage.

“Low” means any routine or non-critical problem or issue with the PAVE SaaS Services that does not impair the underlying functioning of the PAVE SaaS Services, unless such problem or issue is the result of any Excluded Outage.

“Excluded Outage” means any outage or unavailability affecting the PAVE SaaS Services that is caused by: (i) any act or omission of Customer or any Permitted User; or (ii) an event of Force Majeure.

“Service Incident” means any outage, service degradation, malfunction or other issue relating to the PAVE SaaS Services.

8. Service Levels

Discovery Loft will make commercially reasonable efforts to provide the PAVE SaaS Services between the hours of: (a) Monday to Friday from 9:00 am to 11:59 pm EST; and (b) Saturday to Sunday from 9:00 am to 8:00 pm EST, in each case, excluding statutory and civic holidays observed in Toronto, Ontario with an objective of achieving at least 99.80% availability for each calendar month during the Term, excluding downtime or suspension of the PAVE SaaS Services in accordance with Section 2(c)(i) (the “Availability Service Level”). If Discovery Loft fails to meet its Availability Service Level in any calendar month during the Term, Customer will be entitled to credits as follows:

Discovery Loft’s payment of the credits is Discovery Loft’s sole liability and entire obligation and Customer’s exclusive remedy for any breach by Discovery Loft of its Availability Service Level.

9. Fees and Payment

(a) Fees. Customer will pay to Discovery Loft the fees described in any Order Form (collectively, the “Fees”). If Customer requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. Unless otherwise noted on an Order Form, all Fees are identified in United States dollars and are payable in advance.

(b) Changes to the Fees. Discovery Loft reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 60 days prior notice to Customer.

(c) Invoicing. Discovery Loft will prepare and send to Customer, at the then-current contact information on file with Discovery Loft, an invoice for any Fees that have become due and payable. Unless expressly stipulated in an Order Form, Customer will pay all invoiced Fees promptly upon Customer's receipt of the applicable invoice.

(d) Disputed Invoices or Charges. If Customer believes Discovery Loft has charged or invoiced Customer incorrectly, Customer must contact Discovery Loft no later than 30 days after having been charged by Discovery Loft or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

(e) Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Discovery Loft reserves the right to suspend Customer’s access to the PAVE SaaS Services and any delivery of Professional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

(f) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Discovery Loft.

(g) Suspension. Any suspension of the Discovery Loft Services by Discovery Loft pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

10. Confidential Information

(a) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

(b) Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

(c) Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Discovery Loft, to potential assignees, acquirers or successors of Discovery Loft if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Discovery Loft.

11. Warranty; Disclaimer; Indemnity

(a) Customer Warranty. Customer represents and warrants to, and covenants with Discovery Loft that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case, as required by applicable laws, to enable Discovery Loft to provide the PAVE SaaS Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Discovery Loft and to or from all applicable third parties.

(b) GENERAL DISCLAIMER. DISCOVERY LOFT DOES NOT WARRANT THAT THE DISCOVERY LOFT SERVICES OR THE CUSTOMER SYSTEM WHEN USED WITH THE DISCOVERY SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DISCOVERY LOFT SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE DISCOVERY LOFT SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY DISCOVERY LOFT TO CUSTOMER OR PERMITTED USERS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, DISCOVERY LOFT HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, DISCOVERY LOFT EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER OR PERMITTED USERS’ IN CONNECTION WITH CUSTOMER’S OR PERMITTED USERS’ USE OF THE DISCOVERY LOFT SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

(c) Customer Indemnity. Customer will defend, indemnify and hold harmless Discovery Loft, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Permitted Users) claims (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer System, including any Permitted Users’ use or access thereof; (iii) Discovery Loft’s use of Customer Marks in connection with the White-Labelling Functionality or Customer’s use of Discovery Loft Marks in breach of Section 2(e); (iv) Customer’s breach of Section 2(b); or (v) use of the Discovery Loft Services (or any part thereof) by Customer or any Permitted User in combination with any unauthorized third party software, application or service. Customer will fully cooperate with Discovery Loft in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Discovery Loft.

(d) Discovery Loft Indemnity.

(i) Discovery Loft will indemnify, defend, and hold harmless Customer, its employees, officers, directors, affiliates, and agents (each, a “Customer Indemnitee”) from and against any and all third party claims (including damages, recoveries, deficiencies, interest, penalties and legal fees) alleging that that the PAVE SaaS Services infringe the applicable third party’s trade-marks, patents, or copyrights. The foregoing obligation does not apply to any claims arising out of or relating to any: (A) incorporation of any PAVE SaaS Services into, or any combination, operation, or use of any PAVE SaaS Services with, any products or services not provided or authorized in writing by Discovery Loft, unless such infringement would also have resulted solely from the use of the PAVE SaaS Services without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any PAVE SaaS Services other than by Discovery Loft or with Discovery Loft’s express written approval; or (C) unauthorized use of the PAVE SaaS Services.

(ii) If the PAVE SaaS Services are, or in Discovery Loft’s opinion are likely to be subject to a third party claim set out in Section 11(d)(i) above, or if Customer’s use of any PAVE SaaS Services is enjoined or threatened to be enjoined, Discovery Loft may, at its option and sole cost and expense:

(A) obtain the right for Customer to continue to use the affected PAVE SaaS Services materially as contemplated by this Agreement;

(B) modify or replace PAVE SaaS Services, in whole or in part, to seek to make the PAVE SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute PAVE SaaS Services under this Agreement; or

(C) if Discovery Loft determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate the Services, in whole or in part, and require Customer to immediately cease all use of the terminated Services or part or feature thereof and refund any unused prepaid Fees for the terminated Services, if applicable.

This Section 11(d) sets out Customer’s sole remedy, and Discovery Loft’s sole liability, for any third party claim described in this Section.

12. Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE DISCOVERY LOFT SERVICES UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING CAP WILL NOT APPLY TO EITHER PARTY’S LIABILITY ARISING FROM A BREACH OF SECTION 10, FOR WHICH EACH PARTY’S TOTAL AGGREGATE LIABILITY WILL NOT EXCEED THE GREATER OF TWO TIMES THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL DISCOVERY LOFT’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE (INCLUDING IN THE CASE OF DISCOVERY LOFT TO ANY PERMITTED USER) FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF: (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

(c) EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS IN SECTIONS 12(a) AND 12(b) WILL NOT APPLY TO LIABILITY ARISING OUT OF OR RELATING TO: (I) EITHER PARTY’S OBLIGATIONS UNDER SECTION 11; (II) CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTION 2(b), 2(e), OR 9; OR (III) EITHER PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT.

13. Term and Termination

(a) Term. This Agreement will commence on the Effective Date and continue to be in effect until the expiry date set out in an Order Form (the “Term”).

(b) Termination for Cause. Either Party may, in addition to other relief, terminate this Agreement if the other Party commits a material breach of this Agreement and fails within 30 calendar days after receipt of notice of such breach to correct such material breach.

(c) Transition Services. Upon the termination or expiration of this Agreement: (i) Discovery Loft may, in its sole discretion, permit Customer to continue to access the PAVE SaaS Services for the limited purpose of accessing or retrieving Customer Data for up to 14 calendar days following termination or expiration (the “Transition Access Period”); and (ii) the terms and conditions of this Agreement will continue to apply to Customer’s continued access to the PAVE SaaS Services during the Transition Access Period. Discovery Loft will provide additional transition services as set out in an Order Form.

(d) Effect of Termination. Upon the later of the termination or expiration of this Agreement and the termination or expiration of the Transition Access Period: (i) Customer will immediately cease accessing or using the PAVE SaaS Services, including through the Customer System, and all Fees through the date of termination will immediately become due and will be paid by Customer to Discovery Loft; and (ii) Discovery Loft will delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Discovery Loft to provide the PAVE SaaS Services.

(e) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 7 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer; Indemnity), Section 11 (Limitation of Liabilities), Section 12(f) (Survival), and Section 13 (General Provisions).

14. General Provisions

(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Discovery Loft, to the following address:

145 Front St E Suite 102, Toronto, ON M5A 1E3

Attention: CEO

Email: brian.steinhauser@discoveryloft.com

and (ii) if to Customer, to the current postal or email address that Discovery Loft has on file with respect to Customer. Discovery Loft may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Discovery Loft current at all times during the Term.

(b) Assignment. Customer will not assign this Agreement to any third party without Discovery Loft’s prior written consent. Discovery Loft may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.

(c) Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Discovery Loft from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.

(d) Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the PAVE SaaS Services.

(e) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” means the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.

(f) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet or service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).

(g) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

(h) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(i) Independent Contractors. Discovery Loft’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.

(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.

(k) Amendments. No amendment, supplement, modification, or waiver of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, DISCOVERY LOFT MAY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY DISCOVERY LOFT, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE, WHICHEVER IS THE EARLIER.

(l) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.